tive evidence, and as to what is conclusive evidence, of such intention. The courts also differ as to the extent of her power to charge.

In some States a married woman can charge her separate estate only for the benefit of such property or of herself. Elliott v. Gowan, 12 R. I. 79, where it is also held that her estate is not charged unless she expressly declare at the time her in tention to charge it. Perkins v. Elliott, 23 N. J. Eq 526. This case was decided in 1872, and the New Jersey act of 1872, found in the Revised Statutes of 1877, allows a married woman to make any contract and to be sued thereon, except a contract of suretyship or guaranty, or to answer the debt of another. In Pennsylvania the rule still prevails that a married woman cannot charge or encumber her separate estate created by deed or settlement, except to the extent and in the manner expressed in the instrument creating it. Maurer's Appeal, 86 Pa. St. 380. But she can charge her statutory estate by her engagements, oral or written, contracted for its or her benefit. Sawtelle's Appeal, 84 Pa. St. 306. In Maryland she can charge her separate estate only by her engagements directly affecting it. Wilson v. Jones, 46 Md. 849. In Georgia, § 1783 of the Code expressly provides that a married woman cannot bind her property by any contract of suretyship or by any assumption of the debts of her husband. Dunbar v. Mize, 53 Ga. 435. In Alabama the general property of a married woman is not made separate estate by the statute; but the statute prescribes in detail the purposes for which only it can be charged or incumbered. It cannot be charged to secure her husband's debts. Dacus v. Streety, 59 Ala. 254. Mississippi has an analogous statute and the same decision. Stokes . Shannon, 55 Miss. 583. In Arkansas a married woman can charge her separate estate only by her engagements made for the benefit of it or of herself. Collins v. Underwood, 33 Ark. 265. But her mortgage, executed jointly with her husband to secure his debt, is valid. Collins v. Wassell, 34 Ark. 17. In Indiana it has been held she can charge her estate only by engagements made for its betterment. Insurance Co. v. Avery, 60 Ind. 566; Richards v. O'Brien, 64 Ind. 418. In Michigan a married woman cannot be surety for her husband. Kitchell v. Mudgett, 37 Mich. 81; Jenne v. Marble, id. 319. In Illinois, prior to the act of 1874, giving to a married woman the power of a feme sole in relation to her property, she could charge her property by her engagements only so far as was necessary to her enjoyment thereof. Thompson v. Weller, 85 Ill. 197.

In the following States she can charge her estate by her general engagements, including her engagement as surety for her husband or others: In Massachusetts, since 1874- Major v. Holmes, 124 Mass. 108; Goodnow v. Hill, 125 Mass. 587. In New York - Yale v. Dederer, 68 N. Y. 329. In Virginia-Frank v. Lilienfeld, 33 Gratt. 379. In West Virginia, where, however, she can charge her estate to secure the debt of her husband or other person only by note or other engagement in writ ing Radford v. Carwile, 13 W. Va. 572. In South Carolina, by legislation under the new constitution - Witsell v. Charleston, 7 S. C. 88. In Alabama, as to her separate estate created by deed or settlement - Cowles v. Morgan, 34 Ala. 535. Kentucky Hart v. Grigsby, 14 Bush, 542. Ohio-Williams v. Urmston, 35 Ohio St. 296. Illinois, since 1874 - Kohn v. Russell, 91 Ill. 138. Missouri -Siemers v. Kleeburg, 56 Mo. 196. Minnesota - Life Insurance Co. v. Allis, 23 Minn. 337. Nebraska, where there is positive actual intention to do so - Bank v. Scott, 10 Neb. 83. California Woods v. Oxford, 52 Cal. 412.

A promissory note, signed by a married woman, has been held (1), not to be evidence of an intention to charge her separate estate - Hodgson v. Davis, 43 Ind. 258; Emery v. Lord, 26 Mich. 231; (2), not such evidence unless the intention is expressly stated in the note - Yale v. Dederer, 68 N. Y., 329; and the same ruling is made in New York as to her bonds and other written obligations - Gorman v. Cruger, 69 N. Y. 87; Woolsey v. Brown, 74 N. Y. 82. It is held to be presumptive evidence of such intention in Garland v. Pomplin, 32 Gratt. 305; Bell v. Kellar, 13 B. Monroe, 381; Williams v. Urmston, 35 Ohio St. 296. But if she gives the note in part-payment of land bought by her, she is incompetent to testify that she did not intend thereby to charge all her separate estate. Avery v. Vansickle, 35 Ohio St. 270; and has been held conclusive evidence in Kimm v. Wiepert, 46 Mo. 532; Bank v. Taylor, 62 Mo. 338; Morrison v. Thistle, 67 Mo. 596.

In some States a married woman is liable upon her contracts in an action at law. But in Ohio, under a statute providing that "in all cases where she may sue or be sued alone, the like proceedings shall be had and the like judgment rendered and enforced in all respects as if she were an unmarried woman.' It is held that the action against her is still a proceeding to charge her separate estate, not an action upon a contract, and is therefore in substance a suit in equity, though in form an action at law; and hence the petition must aver that she has separate estate. Jenz v. Gugel, 26 Ohio St. 527. A court not having equity jurisdiction-for example, a justice

of the peace - has no jurisdiction in such an action. Allison v. Porter, 29 Ohio St. 136. And there is no right in either party to demand trial by jury. Avery v. Vansickle, 35 Ohio St. 270.

In Alabama the rule was declared as it has since been declared in England, that a judgment enforcing a charge upon a married woman's separate estate attaches only to such separate estate as she owned at the time she entered into the engagement creating the charge, and only to so much thereof as remains her property at the time of the judgment. Pippin v. Jones, 52 Ala. 161.

The statutes of Illinois, Iowa, Kansas, and Colorado seem substantially to give a married woman equal power with a feme sole, as to controlling, conveying, charging and encumbering her property, putting her on the same footing as to her property that the husband has to his. There is a steady drift of legislation tending toward the complete removal of the disability of coverture of a married woman touching the ownership, control, and disposition of property, and her right to sue and liability to be sued alone. Corresponding with this is other progressive legislation tending to relieve the husband from liability for his wife's debts. It is already provided in some States, that if he is made to pay her debts contracted before marriage, he is entitled to restitution from her property; in others, if judgment is recovered against both for such debts, execution must go first against her property; in others, that he is not liable for her debts. In Iowa the laws, Rev. Stats. 1880, declare that neither husband nor wife is liable for debts contracted by the other, while both are liable for appropriate necessaries supplied to the family. In some States it is also provided that the wife shall sue alone, and in her own right, for injuries done to her, and that the husband is not liable for her torts.

LECTURE XV.

PARENT AND CHILD. (a)

§ 107. Legitimate and Illegitimate Children. The relation of parent and child, though in itself the most interesting that can be contemplated, is not, professionally speaking, a subject of very great importance. The law has, in fact, very little to do in regulating this relation. The sentiments of natural affection and moral obligation are so efficient for this purpose, that the sanctions of law are for the most part dispensed with; and this has become more and more the case, in proportion as mankind have become more civilized. The difference, in this respect, between ancient and modern times, is remarkable. From unlimited authority over the person, property, and even life, of the child, the parent is now curtailed to a very guarded and qualified authority over the person, during the years of minority. And even this authority finds but little aid in the law to enforce it in case of resistance. In a word, parental authority and filial obedience are left, as they should be, to the law which nature has written upon the heart. In very recent times we may discover changes in this respect, showing a regular

(a) See 2 Kent, Com. lec. 29; 1 Black. Com. ch. 16; 1 Swift, ch. 6; Reeves's Domestic Relations; Bingham on Infancy; McPherson on Infancy. See act to authorize the adoption of children, passed March 29, 1859. As to the proofs of filiation and legitimacy, see Hubback on Succession. There is a very interesting case on this subject, involving the legitimacy of John P. Ferrie, where the evidence peculiar to these questions is fully discussed. 3 Bradford, Sur R. 151, 249; 4 id. 28; Caujolle v. Ferrie, 26 Barb. 177. s. c. 23 N. Y. 90.

tendency towards the doctrine of non-interference by legislators in domestic affairs. Among the earliest laws adopted in this territory, in 1788, is one providing that if a child or servant should refuse "to obey the lawful commands" of a parent or master, upon complaint to a magistrate, the offender might be sent to jail," there to remain until he should humble himself to the satisfaction of the parent or master." And if a child or servant should " presume to assault or strike" his parent or master, upon complaint to two or more magistrates, the offender might be whipped, not exceeding ten stripes. What would be thought of such a law at the present day? The legislature would not deign to discuss a provision of this kind. But I proceed to the few legal matters that require notice under this head.

Though the law of parent and child is said to be founded in nature, yet it makes a broad distinction between legitimate and illegitimate children. By our law, legitimate children comprehend all those whose parents were married, whether lawfully or not, at the time of their being begotten or born, or who married afterwards. This is much more liberal than the English rule, which requires the marriage to precede the birth, and which bastardizes the issue of all unlawful marriages. Here, on the contrary, it is expressly provided, that if the offending parents afterwards intermarry, and acknowledge their children, they thereby become legitimate; and that the issue of marriages deemed null in law, shall nevertheless be held legitimate. In the same spirit, and nearly to the same effect, is another provision, declaring that no divorce shall render the children illegitimate. The justice and humanity of these provisions cannot fail to strike every mind. How cruel and unreasonable the law which would visit the sins of the parents upon the unoffending offspring of their unlawful intercourse! And, on the other hand, how wise and humane the law which gives to such parents the strongest of motives to repair, by subsequent marriage, the wrong they will otherwise have done! Such improvements in the law cannot be too much commended. Though apparently trifling in themselves, they indicate a spirit which, if persevered in, cannot fail to purge the law of a multitude of doctrines unsuited to the present state of civilization. It follows from the foregoing remarks, that illegitimate children, or bastards, comprehend all children whose parents never intermarried at all, or were divorced before the children were begotten. But when a doubt exists, the presumption is always in favor of legitimacy; and, therefore, if a woman have a child within a possible time after the death or absence of her husband, that child is presumed to be legitimate. Our statute respecting bastards, (a) corresponds in the main with the English statute, as described by Blackstone. It authorizes any unmarried woman, who is pregnant or delivered of a bastard child, to go before a justice and make oath who is the (a) For the construction given to this statute, see Massie v. Donaldson, 8 Ohio, 377, and Wright's Rep. 464, 564, 690.

father. The putative father is then brought up by warrant, and the examination is taken in writing. If he can compound with the mother, and will give bond to the overseers of the poor, for the maintenance of the child, the matter ends there. (a) If not, he is bound over to appear at the next court, where the issue is tried on a plea of not guilty. The former examination is given in evidence, and the mother may testify further. If the jury find that he is guilty, the court adjudge him to be the "reputed father," and fix the amount of maintenance and times of payment; and unless he gives satisfactory security therefor he is committed to jail. (b) If the mother will not proceed against the father in the way here pointed out, the overseers of the poor may. From the nature of the proceeding, it will at once be seen that even an innocent man, once accused, has very little chance of establishing his inno

The most important point of difference between legitimate and illegitimate children, is that which relates to the right of inheritance. The general rule is, that children are the first heirs to their deceased parents: but in England bastards are held to have no inheritable blood. They can neither inherit themselves, nor be the medium of transmitting inheritance to others. We have so far modified this doctrine, as to allow them to inherit and transmit inheritance on the part of the mother, who can always be known with certainty. (c) But with respect to the father, the law is unchanged, and they cannot inherit from or through him. The general subject of inheritance will come up hereafter. In this connection, it is sufficient to say that posthumous children inherit in the same manner as if born during the father's life; that no preference is given to sons over daughters, nor to the eldest son over the rest; and that the arbitrary rule, that property can never lineally ascend is done away; so that parents may be heirs to their children.

§ 108. Rights and Duties of Parents. (d) Blackstone and other writers lay down the duties of parents towards their children as consisting in their maintenance, protection, and education. There can be no doubt that these are duties of the highest moral obligation; and he would be an unnatural parent, who should be false to them, having the ability to perform them. But it is certainly a mistake to say that they are duties of strict legal obligation, unless there be a statute to that effect. Such they are not, because the common law furnishes no means of enforcing their performance, or punishing their non-performance. On this subject, writers seem

43.

(a) Maxwell v. Campbell, 8 Ohio State, 265. Hootman v. Shriner, 15 Ohio State,

(b) The marriage of the complainant to another man, subsequent to the institution of the suit but prior to the birth of the child, will not defeat the proceedings. The child may still be born a bastard. Rotte r. Jacobs, 21 Ohio St. 646.

(c) Curwen's Stat. p. 1474, act of March 14, 1853, § 15; Lewis v. Eutsler, 4 Ohio State, 351. 64 Ohio Laws, 105.

(d) 1 Black. Com. 446; 2 Kent, Com. 189; Inhabitants, &c. v. Mendez, 1 Raymond, 699; Cooper v. Martin, 4 East, 76; Mills v. Wyman, 3 Pick. 207; Stanton v. Wilson, 3 Day, 37; Van Valkinburg v. Watson, 13 Jolins. 480; Edwards v. Davis, 16 id. 281.

to be beguiled by their good feelings into singular misapprehension or inexcusable vagueness of expression. How can you compel a parent to maintain, protect, or educate his child? The common law furnishes no means of doing it; and as the test of legal obligation is the means of enforcing it, this proves that the legal obligation does not exist. First, as to maintenance or support, our statute seems to presuppose that there are no means of compulsion, by authorizing the township trustees to bind children out when their parents shall not provide for them; and the principle that a parent may by will disinherit a child, or may do the same thing by giving all his property away during his life, leads to the same conclusion. It may even be doubted whether, if a parent. should, without reason, turn his child out of doors, and a stranger, knowing this, should provide for the child, he could recover payment from the parent. (a) Next, as to protection, a parent may

(a) The law of England is well settled that the father is under no legal obligation to provide for the maintenance of a child, and cannot be made liable for necessaries furnished to him by a third person without authority express or implied. Mortimore v. Wright, 6 M. & W. 482; Shelton v. Springett, 11 C. B. 452; s. c. 20 Eng. Law and Eq. 281. Such is held to be the common law in Vermont, New York, and Illinois. Gordon r. Potter, 17 Vt. 348; Raymond v. Loyl, 10 Barb. 483: Chilcott v. Trimble, 13 id. 502; Hunt e. Thompson, 3 Scammon, 180. So too in New Hampshire, where it is held that the obligation cannot be implied from an omission merely of the moral obligation to furnish necessaries. Kelley v. Davis, 49 N. H. 187. But contra, in Massachusetts. Dennis v. Clark, 2 Cushing, 353. And see also Eitel ". Walter, 2 Bradford (N. Y.), 287; Pocock v. Miller, 1 Hilton (N. Y. C. P.), 108; Edwards v. Davis, 16 Johns. 281; Owen v. White, 5 Porter (Ind.), 435; Litchfield v. Londonderry, 39 N. H. 247; Hines v. Mullins, 25 Ga. 696; Dawson v. Dawson, 12 Iowa, 512; Tomkins v. Tomkins, 3 Stockton, 512; Gill e. Read, 5 R. I. 343, — holding the father liable for necessaries. In Cromwell v. Benjamin, 44 Barb. 558, it is said that the liability of the father to support his children where they are minors or invalids, and unable to support themselves, and remain members of his family, rests upon principles analogous to those which create a husband's liability to support his wife. But see contra. The father who is willing to support his child is not liable for such support to one who wrongfully withholds it from him, or to the mother who, having been divorced from him, so withholds it, or where the custody of the child was awarded to her in a decree of separation or divorce. Fitler v. Fitler, 33 Penn. State, 50; Burritt v. Burritt, 29 Barb. 124; Finch v. Finch, 22 Conn. 411. The obligation of the father to support his child is not removed by the circumstance that the child has property, even greater than his own. Dawes v. Howard, 4 Mass. 97. But a liberal doctrine now prevails, under which allowances are made to the father of a certain portion of the property of the child for its support, graduated according to the respective estates of the father and child, the ability of the former, the position and expectations of the latter, and all the circumstances of the case. Retrospective allowances are, however, not favored. Matter of Burke, 4 Sandf. Ch. 617; Matter of Kane, 2 Barb. Ch. 375; Presley v. Davis, 7 Rich. Eq. 105; Watts v. Steele, 19 Ala. 656; Osborne v. Van Horne, 2 Flor. 360; Pierce v. Olney, 5 R. I. 269; Kilburn v. Hosmer, 10 Cush. 150; 2 Kent, Com. 191; 1 Parsons, Cont. 256, 257. Tomkins v. Tompkins's Ex'rs, 3 Green, 303; Beasley v. Watson, 41 Ala. 234. Where a mother brings up a child who has property under circumstances which show that she did not intend it as a gratuity to the child, she may maintain an action for the expenses of maintenance and education. Whipple v. Dow, 2 Mass. 414. But the presumption is, that a parent's maintenance of a child is intended to be gratuitous, and the fact that the child has property while the parent has none, will not be sufficient to rebut such a presumption. Reeves's Dom. Rel. 466, note. The authority of the child to contract on behalf of the father for necessaries may be implied from circum. stances. Baker v. Steen, 2 Stark. 501; Mortimore v. Wright, 6 M. & W. 482; Deane v. Annis, 14 Maine, 26; Thayer v. White, 12 Met. 343; Swain r. Tyler, 26 Vt. 1. Platts v. Roseburg, 4 Dutcher, 136. I think, that, upon careful examination of these apparently conflicting cases, most if not all of them will be found practically to hold the parent bound to support the child; for where they deny this to be the